Another Solicitor's view on Brexit after tghe Supreme Court's decision

It is uncanny that once again a Remain inspired court case (the Supreme Court case concerning the proroguing of Parliament) should provide sustenance and vim to the leave position.

 

Commenting on the decision, a representative of Mischon de Reya, the solicitors practice representing Gina Miller in the case is reported as saying:

 

‘This second success for our client Gina Miller in the Supreme Court is a testament to her resolve to take whatever steps are required to ensure executive overreach does not become a feature of our democracy. This case shows that our courts can be relied on to hold the executive to account when necessary and is evidence of the robustness of our system of separation of powers.’

 

If the proroguing of parliament in preparation for a Queen’s speech was an act of executive overreach, there can be no more significant and substantial example of executive overreach in recent years than the attempt by the executive to override the statutory and legal framework for the departure of the UK from the EU on 29^th March 2019 in the face of over 100 Prime Ministerial statements that the UK would be leaving the EU on 29^th March 2019, the European Union Referendum Act 2015, the referendum held on 23^rd June 2016, the European Union (Notification of Withdrawal) Act 2017, the notification to leave letter of 29^th March 2017 and the provisions of Article 50 TEU. Further detail on such statutory and legal framework is set out below.

 

The first Gina Miller case had itself reiterated the position that ‘it is a fundamental principle of the UK constitution that, unless primary legislation permits it, the Royal prerogative does not enable ministers to change statute law or common law.’ Furthermore, ‘ministers cannot frustrate the purpose of a statute or a statutory provision, for example by emptying it of content or preventing its effectual legislation (and, in some cases, even without any domestic legislation)’. The statutory position in March 2019 was that the UK would leave the EU either with a withdrawal agreement before 29^th March 2019 or without a withdrawal agreement on 29^th March 2019. The European Union (Notification of Withdrawal) Act 2017 had set out the intention for the UK to leave the EU, its purpose was to facilitate the UK’s departure from the EU. A minister (including the Prime Minister) could not change that statutory position or that intention. Accordingly, the executive overreach of purporting to agree an Article 50 extension beyond 29^th March 2019 was unsustainable and the treaties of the European Union ceased to apply to the UK with effect from 29^th March 2019 i.e. the UK left the EU on 29^th March 2019 without a withdrawal agreement.

 

 

It is some months since the English Democrats first brought their case for judicial review and a declaration from the court that the UK left the EU on 29^th March 2019. The denial of a public hearing on the matter has required an appeal to be made to the European Court of Human Rights. If the case concerning the proroguing of Parliament shows the courts can be relied on to hold the executive to account when necessary and is evidence of the robustness of our system of separation of powers, the long wait for a public hearing concerning the UK’s departure from the EU on 29^th March 2019 continues, in hopeful anticipation that the courts can be relied on to hold the executive to account and of the robustness of our system of separation of powers to do so.

 

 

 

 

Withdrawal of the United Kingdom from the European Union on 29^th March 2019:  Statutory and legal framework

 

• European Union Referendum Act 2015

 

Section 1(1) ‘A referendum is to be held on whether the United Kingdom should remain a member of the European Union’

Section 1(4) The question that is to appear on the ballot paper is ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’

Section 1(5) The alternative answers to that question that are to appear on the ballot papers are-

 

               ‘Remain a member of the European Union

                Leave the European Union’

 

• Referendum held on 23^rd June 2016

 

72.21% of 46,500,001 registered voters participated in the referendum

 

The result: Leave: 17,410,742

                    Remain: 16,141,241

 

• EU Withdrawal Procedure

 

Article 50 of the Treaty on European Union

 

Article 50.1 ‘Any Member State may decide to withdraw from the Union in

accordance with its own constitutional requirements.’

 

Article 50.2 ‘A Member State which decides to withdraw shall notify the

European Union of its intention. In light of the guidelines provided by the

European Council, the Union shall negotiate and conclude an agreement

with that State, setting out the arrangements for its withdrawal, taking

account of the framework for its future relationship with the Union. That

agreement shall be negotiated in accordance with Article 218(3) of the

Treaty on the Functioning of the European Union. It shall be concluded on

behalf of the Union by the Council, acting by a qualified majority, after

obtaining the consent of the European Parliament.’

 

 Article 50.3 ‘The Treaties shall cease to apply to the State in question from

 the date of entry into force of the withdrawal agreement or, failing that,

 two years after the notification referred to in paragraph 2, unless the

 European Council, in agreement with the Member State concerned,

 unanimously decides to extend this period.’

 

 

• Gina Miller case

 

  Certain extracts from the Judgment re R (on the application of Miller and

  another) (Respondents) v Secretary of State for Exiting the European Union

  (Appellant): Hilary Term {2017] UKSC 5

 

  Paragraph no. 26

 

  ‘In these proceedings, it is common ground that notice under article 50(2)

   (which we shall call “Notice”) cannot be given in qualified or conditional terms

   and that, once given, it cannot be withdrawn. Especially as it is the Secretary

   of State’s case that, even if this common ground is mistaken, it would make no

   difference to the outcome of these proceedings, we are content to proceed on

   the basis that that is correct, without expressing any view of our own on either

   point. It follows from this that once the United Kingdom gives Notice, it will

   inevitably cease at a later date to be a member of the European Union and a

   party to the EU Treaties.’

 

   Part of paragraph no. 50

 

   ‘it is a fundamental principle of the UK constitution that, unless primary

    legislation permits it, the Royal prerogative does not enable ministers to

    change statute law or common law.’

 

    Parts of paragraph no. 51

 

    Further, ministers cannot frustrate the purpose of a statute or a statutory

    provision, for example by emptying it of content or preventing its effectual

    legislation (and, in some cases, even without any domestic legislation’

 

    ‘Of course, consistently with the principle of Parliamentary sovereignty, this

     unprecedented state of affairs will only last so long as Parliament wishes; the

     1972 Act can be repealed like any other statute.’

 

     Part of paragraph no. 61

 

     ‘That point simply reflects the fact that Parliament was and remains

      sovereign’

 

     Part of Paragraph no. 69

 

     ‘The Divisional Court concluded that, because ministers cannot claim

      prerogative powers to take an action which would result in a change in

      domestic law, it was not open to ministers to withdraw from the EU Treaties,

      and therefore to serve Notice, without authorisation in a statute.’

 

      Part of Paragraph no. 94

 

      ‘If ministers give Notice without Parliament having first authorised them to

       do so, the die will be cast before Parliament has been formally involved. To

       adapt Lord Pannick’s metaphor, the bullet will have left the gun before

       Parliament has accorded the necessary leave for the trigger to be pulled. The

       very fact that Parliament will have to pass legislation once the Notice is

       served and hits the target highlights the point that the giving of the Notice

       will change domestic law; otherwise there would be no need for new

       legislation.’

 

       Part of Paragraph no. 101

 

       ‘the prerogative could not be invoked by ministers to justify giving Notice;

        ministers require the authority of primary legislation before they can take

        that course.’

 

        Part of Paragraph no. 122

 

        ‘A notice under article 50(2) could no doubt be very short indeed, but that

         would not undermine its momentous significance. The essential point is

         that, if, as we consider, what would otherwise be a prerogative act would

         result in a change in domestic law, the act can only lawfully be carried out

         with the sanction of primary legislation enacted by the Queen in

         Parliament.’

 

         Part of Paragraph no. 123

 

         ‘A resolution of the House of Commons is an important political act. No

         doubt, it makes it politically more likely that any necessary legislation

         enabling ministers to give Notice will be enacted. But if, as we have

         concluded, ministers cannot give Notice by the exercise of prerogative

         powers, only legislation which is embodied in a statute will do. A resolution

         of the House of Commons is not legislation.’

 

 

• The European Union (Notification of Withdrawal) Act 2017

 

‘An Act to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European, the United Kingdom’s intention to withdraw from the EU.’

 

Section 1 Power to notify withdrawal from the EU

1. The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.
2. This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.’ 

 

 

• The Prime Minister wrote to the European Council on 29^th March 2017

 

The Prime Minister wrote to the European Council on 29^th March 2017 giving notification of the United Kingdom’s intention to leave the EU pursuant to the European Union (Notification of Withdrawal) Act 2017

 

• Negotiations commenced on an agreement for the withdrawal of the United Kingdom from the EU under Article 50(2) of the Treaty on European Union (‘Withdrawal Agreement’).

 

The Withdrawal Agreement from the first published draft and in the form presented to the UK Parliament stipulated that it would not come into force if the depositary of the agreement had not received confirmation of conclusion of the necessary procedures by the Union and the UK before 30^th March 2019.

 

• The Prime Minister reiterated on numerous occasions that the United Kingdom would leave the EU on 29^th March 2019

 

 

The position was set in law: The United Kingdom would leave the EU either with a withdrawal agreement before 29^th March 2019 or without a withdrawal agreement on 29^th March 2019.

 

 

Before 30th March 2019:

 

• There was no new Referendum Act to re-run the 2016 referendum or to extend the Article 50 period and thereby delay the UK’s departure from the EU;                   
• There was no new referendum which reversed the result of the 2016

               referendum;

• There was no new referendum to seek to extend the Article 50 period and delay the UK’s departure from the EU;
• There was no primary legislation to reverse the intention of the United Kingdom to leave the European Union as set out in the European Union (Notification of Withdrawal) Act 2017;
• There was no primary legislation to repeal the European Union (Notification of Withdrawal) Act 2017;
• There was no removal of the Prime Minister’s notification of the United

              Kingdom’s intention to leave the European Union;

• There was no primary legislation granting the Prime Minister or any other

              minister power to seek or obtain on behalf of the United Kingdom an

              extension under Article 50(3) of the Treaty on European Union;

• There was no democratic mandate to reverse the result of the 2016 referendum (on the contrary there was a clear democratic mandate in a general election to implement the result of that referendum);
• There was no change in the fundamental constitutional position as set out in the Gina Miller case;

              ‘it is a fundamental principle of the UK constitution that, unless primary

               Legislation permits it, the Royal prerogative does not enable ministers

               to change statute law or common law.’

               ‘ministers cannot frustrate the purpose of a statute or a statutory

                provision, for example by emptying it of content or preventing its

                effectual legislation (and, in some cases, even without any domestic

                legislation)’

• The UK Government failed to secure the approval of the House of Commons to the ‘Withdrawal Agreement’;
• The United Kingdom and the people of the United Kingdom were not consulted on a possible delay to the UK’s departure from the EU beyond 29^th March 2019;
• The United Kingdom did not provide authority for anyone to seek or agree an extension of Article 50; and
• The United Kingdom (as compared with the Government/ Prime Minister) did not agree to an extension of Article 50

 

 

     The United Kingdom gave notice to leave the EU on 29^th March 2017

     in accordance with the European Union (Notification of Withdrawal) Act

     2017 (which flowed from the European Union Referendum Act 2015 and

     the 2016 referendum result).

 

     Article 50.3 ‘The Treaties shall cease to apply to the State in question from

     the date of entry into force of the withdrawal agreement or, failing that, two

     years after the notification referred to in paragraph 2, unless the European

     Council, in agreement with the Member State concerned, unanimously

     decides to extend this period.’

 

• The withdrawal agreement did not enter into force (30^th March 2019 came and went the depositary of the agreement had not received confirmation of conclusion of the necessary procedures by the Union and the UK before 30^th March 2019);

 

        -   two years after notification, occurred on 29^th March 2019; and

 

       -     the Member State concerned (the United Kingdom, as compared with

              the Government/Prime Minister) had not agreed to extend the two-year

              period

 

      The Treaties of the European Union ceased to apply to the United Kingdom

      on 29^th March 2019 i.e. the United Kingdom left the EU on 29^th March 2019

      without a withdrawal agreement.